A Cole County judge on Wednesday denied local health departments and the state’s two largest counties from intervening and appealing a recent court ruling that has upended restrictions put in place to mitigate the spread of COVID-19.
The ruling, issued by Cole County Circuit Judge Daniel Green the same day that his Nov. 22 order is set to become final, will keep in place a consequential verdict that Attorney General Eric Schmitt has used as the basis to end local health orders.
Doug Moore, a spokesman for St. Louis County, said Green’s decision was “no surprise,” adding that it now gives the county “a path to appeal.” Stephen Jeffrey, an attorney representing the health centers in Cooper and Livingston counties, said they are evaluating whether to appeal and will file one within the next ten days if they pursue one.
In a statement Wednesday afternoon, Schmitt said that with the ruling now final, school districts and health departments should rescind public health orders covered under it or risk facing litigation.
“We plan to begin enforcement action on non-compliant entities as soon as January,” Schmitt said.
Chuck Hatfield, an attorney who previously served in the attorney general’s office under Democrat Jay Nixon, said the local agencies could ask the court of appeals to review Green’s denial of their motions to intervene.
“Because the AG has announced that they’re not going to appeal the underlying case on behalf of the department,” Hatfield said, “it appears that’s really the only way to have this case reviewed.”
In total five entities — the counties of St. Louis and Jackson and three local health departments in the counties of Cooper, Livingston and Jefferson — requested they be allowed to join the lawsuit in order to appeal the ruling or ask for a new trial.
But the attorney general’s office argued it wasn’t the counties or health departments’ decision to make.
In a filing opposing their motion to intervene, Schmitt’s office said that the attorney general holds the final authority to determine whether to file appeals on behalf of the state — a move he chose not to pursue, despite that state health department’s request.
Counties and public health departments aren’t “second-chair attorneys general” Schmitt’s office wrote, and instead are political subdivisions of the state who have declared authority under regulations that the ruling declared unconstitutional. Motions to intervene “are clear attempts to circumvent the Attorney General’s exclusive authority,” the filing read.
Kimberley Mathis, an attorney representing the business owners who originally sued the Department of Health and Senior Services wrote that the counties and health departments’ criticisms of Green’s ruling “are just sour grapes.”
Mathis urged Green to deny their motions to join the case and said “the saga of tyrannical health department rule should finally end.”
“The putative intervenors never sought to intervene until the eleventh-hour even though the case has been pending for nearly a year,” Mathis wrote, “and the leader of the pack, St. Louis County, has been well-aware of this case for many months.”
The counties and health departments were attempting to overturn a ruling Green issued last month that found state regulations giving local health departments the power to issue health orders violated the Missouri Constitution.
Health orders issued unilaterally by local health authorities under the regulations were declared “null and void.”
While the lawsuit only challenged certain St. Louis County health orders, Green’s ruling and Schmitt’s subsequent enforcement appears to affect all local entities that have imposed health orders, creating “confusion and significant uncertainty concerning which local health orders and regulation are valid and which are not,” Jeffrey wrote in a filing.
In a brief supporting their motion to intervene, attorneys for the counties of Jackson and St. Louis argued that Schmitt has been “terrorizing local governments and schools” to enforce the ruling.
Schmitt has sent cease and desist letters to school districts and health departments, warned of future litigation if they fail to comply immediately and set up an inbox for parents to send complaints about districts continuing mitigation measures.
In the wake of Green’s ruling over a dozen local health departments have stopped aspects of their work to surveil and mitigate the spread of the coronavirus, citing a lack of guidance from the state health department.
Public health experts have warned that the state regulations that Green declared invalid not only limit health officials’ ability to contain the spread of COVID-19, but contagious diseases more broadly.
Numerous school boards have voted to allow COVID protocols, like mask mandates, to expire or have stopped requiring students identified as a close contact of a COVID case quarantine at home. Meanwhile, others have resisted Schmitt’s demands, pointing to local regulations and state laws that give them the authority to keep their mitigation measures in place.
With Green’s ruling set to become final under the rules governing civil cases, it remains to be seen how school districts and health departments may choose to move forward and whether the attorney general’s office will pursue enforcement on a case-by-case basis with individual districts or departments that choose to keep mitigation measures in place.
“If they really are intending to go out and and require local authorities to drop these orders, I think they’re going to have to litigate them one at a time,” Hatfield said. “I think in some ways, you got to be a little careful as attorney general of which battles you choose to fight, because this is a pretty good sized one.”
Citing the possibility of schools facing future litigation, state Treasurer Scott Fitzpatrick has also begun requiring schools certify that they will comply with Schmitt’s demands in order to take advantage of lower interest rates to refinance bonds through the state.
According to emails obtained through a request under Missouri’s Sunshine Law, the attorney general’s office shared complaints it had received from community members regarding two school districts that the Treasurer’s Office had ongoing bond deals with.
Mary Compton, a spokeswoman for the treasurer’s office, said Fitzpatrick requested the attorney general’s office send complaints about those districts because their bond deals were pending.
Emails also showed that the treasurer’s office shared a signed certification form completed by the Warren County R-III School District with the attorney general’s office. Compton said certification was provided to the attorney general’s office for their records.
Meanwhile, two school districts ended their fall semesters early last week in the face of large numbers of students and staff out sick.
“It bears noting that General Schmitt’s attack on local public health authorities and school districts, using this Court’s Judgement as his sword, has taken place against a backdrop of soaring numbers of COVID-19 cases and a surge in hospitalizations in Missouri,” attorneys for the counties of St. Louis and Jackson wrote. “The stakes in this case are high.”
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